A full Bench of the North Gauteng High Court has thrown out delinquent director for life Dudu Myeni’s appeal against an enforcement order.

That order, made in late December last year, required her to forsake all her remaining directorships, including the chair of the Jacob G Zuma Foundation.

A full Bench of the court heard Myeni’s “extreme urgent appeal” last Monday. The judges were Judge President of the Gauteng division of the High Court Dunston Mlambo, Justice Vuyelwa Tlhapi and Justice Annelie Basson.

In their judgment, issued on Monday afternoon, the three judges upheld the argument put forward by the counsel for the Organisation Undoing Tax Abuse (Outa) and the SAA Pilots’ Association (Saapa) last Monday.

Outa and Saapa filed the original application in 2017 to declare Myeni a delinquent director due to her disastrous reign as SAA chairperson.

‘Myeni’s appeal has lapsed’

“The application for leave to appeal in the present matter has lapsed. In order for the application for leave to appeal to be revived, condonation will have to be granted by the Supreme Court of Appeal (SCA),” the three judges wrote.

On behalf of Outa and Saapa, advocate Carol Steinberg last Monday said that Myeni’s right to petition the SCA to appeal against the main ruling made in May last year that declared her a delinquent director had lapsed as she had submitted her SCA petition late.

On 3 February, Myeni petitioned the SCA to dismiss the delinquent director for life declaration issued by Judge Ronel Tolmay on 27 May last year, but she filed the court documents seven days late.

In the ruling issued in May last year, Tolmay found Myeni to be dishonest, that she had grossly abused her power, was grossly negligent, reckless, and that her actions had inflicted substantial harm on SAA. 

“She was a director gone rogue,” Tolmay wrote.

‘Logistic problems’

Myeni’s attorney, Eric Mabuza, wrote to Mlambo and indicated to him that her lawyers had failed to petition the SCA on time for leave to appeal due to “unspecified logistic problems”, the judges stated in their ruling on Monday.

“It is therefore common cause before us that the application for leave to appeal to the SCA was not filed timeously in terms of the one-month period for application for leave to appeal to the SCA,” the three judges wrote.

“We further hold the view that, although the length of the delay in filing the application for leave to appeal to the SCA is negligible… the prospects of the appellant succeeding with her condonation application to the SCA are rather slim.” 

The three judges might have set Myeni’s delinquent director for life declaration in stone with those words.

Appeal struck off

“The appeal must clearly be struck off [the roll]. In respect of costs, both parties were ad idem that this is a self-standing application and that costs should follow the result,” they added.

Advocate Dali Mpofu, who represented Myeni, last Monday argued that the North Gauteng High Court should consider that the parties in the present matter have always anticipated there would be further appeals.

Mpofu further argued that Myeni’s failure to file her petition to appeal with the SCA on time should not stand in the court’s way to hear her urgent appeal.

‘Misconceived’ argument 

However, the three judges found Mpofu’s argument to be “misconceived”.

“In light of the belated petition now filed by [Myeni], the principal judgment’s order remains operational because the service of an application to condone the late filing of the petition to the SCA does not suspend the operation and execution of any order,” the judges wrote.

“To conclude otherwise would give rise to an untenable situation in law where, after an order has been operational for a number of months, a party could simply bring a condonation application which would result in such an order suddenly being suspended. Such a situation would clearly give rise to far-reaching consequences that this court cannot condone.” DM